STATE OF NEW JERSEY v. JAMES GREEN (2013)

Defendant James Green appeals his conviction, following a guilty plea, for driving while intoxicated (DWI), contrary to N.J.S.A. 39:4–50.   His appeal focuses on the Law Division's denial of his motion to suppress evidence based upon what he alleges was an illegal motor vehicle stop.   We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

At approximately 12:45 a.m. on December 19, 2010, Green's vehicle was stopped by Sergeant Douglas Herner of the Mantua Township Police Department.   Herner had observed Green enter an intersection on Mantua Boulevard after the traffic signal turned yellow.   According to Herner, he saw Green's vehicle “accelerate ․ to get through the intersection and the light turned red prior to [the vehicle] getting completely through the intersection.”   After driving through the intersection, Green turned into a gas station.

Herner activated his vehicle's flashing lights and followed Green into the gas station.   As Herner approached Green's car, he said, “cutting it kind of close there with the light.”   Herner subsequently arrested Green and charged him with DWI.

Green filed a motion to suppress the evidence resulting from the stop.   The municipal court judge took testimony on June 23, 2011.   The State called Herner to testify.   Green did not present any witnesses.

Herner testified that he stopped Green for “[c]areless operation of the vehicle,” based on “acceleration through the traffic signal trying to beat the red light,” as well as “driving over the curb” when he entered the gas station.   On cross-examination, however, Herner conceded he had turned on his vehicle's flashing lights before Green's vehicle drove over the curb.

The State also offered the video from the recording device in Herner's police vehicle, viewed multiple times at the evidentiary hearing.   Green's attorney argued that the video demonstrated that the light was not red when Green left the intersection, and that the stop was consequently unlawful.

The municipal court judge denied the motion to suppress, finding that Herner had “sufficient probable cause for the stop.”   The judge found it significant that he and the attorneys had to view the video many times to determine whether the light remained yellow as Green's vehicle left the intersection, pointing out that Herner “[didn't] get the luxury of watching it over and over and over again” before making the stop.   The judge also found “[t]he fact that [Herner] came to the vehicle and said ․ ‘cutting it kind of close,’ ․ means he had a suspicion or an idea that there might have been a violation and he was investigating further.”

On April 5, 2012, Green entered the guilty plea, reserving his right to appeal the ruling on the motion to suppress.   Because he had two prior DWI convictions, the municipal judge imposed a sentence of incarceration for six months, a ten-year revocation of driving privileges, mandatory participation in a treatment program, and appropriate fines and penalties.

Green filed an emergent appeal to the Law Division on April 5. The Law Division judge stayed the incarceration and fines pending completion of the trial de novo.   He did not stay the revocation of Green's driving privileges.

The trial de novo took place on June 29.   Based on his several reviews of the video, the Law Division judge concluded that Green's vehicle had, in fact, “clear[ed] the intersection ․ before the light actually turned red, although [it] wasn't far beyond it.”   After hearing argument, the judge placed an oral decision on the record, denying Green's motion to suppress.   He imposed the same sentence as the municipal judge.

Like the municipal judge, the Law Division judge concluded that Herner “testified credibly.”   After setting forth the facts, the judge summarized his holding and reasoning as follows:

[T]he reasonable belief that the officer had is what the [c]ourt must focus on, not whether he was acting in subjective good faith.   Not whether he had a hunch.   But whether based on the facts he was acting with a reasonable belief that a violation occurred․

․ [I]t's irrelevant whether the State can satisfy the burden of proving a [d]efendant guilty beyond a reasonable doubt of the violation, just that he had an articulable and reasonable suspicion to conduct the stop.

And I do find from [Herner's] testimony and corroborated by the recording that there was an articulable and reasonable suspicion for him to conduct the stop.

The implementing order was entered the same day.   This appeal followed.¹

II.

Green raises the following arguments on appeal:

POINT I:  DEFENDANT DID NOT COMMIT A MOTOR VEHICLE INFRACTION AND THEREFORE THE SEIZURE OF DEFENDANT'S VEHICLE WAS NOT CONSTITUTIONALLY PERMISSIBLE.

POINT II:  THE OFFICER MISTAKENLY BELIEVED THAT IT IS A MOTOR VEHI[CLE] INFRACTION TO EITHER DRIVE THROUGH AN INTERSECTION AS A TRAFFIC SIGNAL TURNS RED AND/OR TO ACCELERATE THROUGH AN INTERSECTION ON AN AMBER OR YELLOW LIGHT.

POINT III:  THE DE NOVO COURT IMPROPERLY RELIED UPON STATE V. WILLIAMSON, 138 N.J. 302 [ (1994),] IN DETERMINING THAT THERE WAS AN ARTICULABLE AND REASONABLE SUSPICION TO JUSTIFY THE STOP OF DEFENDANT'S VEHICLE.

Our role in an appeal such as this is limited, in that we “consider only the action of the Law Division and not that of the municipal court.”  State v. Oliveri, 336 N.J.Super. 244, 251 (App.Div.2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)).   The Law Division determination is de novo on the record from the municipal court.   R. 3:23–8(a).   We are ordinarily limited to determining whether the Law Division's de novo findings “could reasonably have been reached on sufficient credible evidence present in the record.”  State v. Johnson, 42 N.J. 146, 162 (1964).   In addition, under the two-court rule, only “a very obvious and exceptional showing of error” will support setting aside “concurrent findings of facts and credibility determinations made by” the Law Division and the municipal court.  State v. Locurto, 157 N.J. 463, 474 (1999).   Nevertheless, our review of purely legal issues is plenary.  State v. Goodman, 415 N.J.Super. 210, 225 (App.Div.2010), certif. denied, 205 N.J. 78 (2011).

Under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, “[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement.”  State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)).   The same is true of the warrantless seizure of a person or property.  Terry v. Ohio, 392 U.S. 1, 19–21, 88 S.Ct. 1868, 1879–80, 20 L. Ed.2d 889, 905–06 (1968) (seizure of a person);  State v. Hempele, 120 N.J. 182, 218–19 (1990) (seizure of property).

The seizure of a person occurs in a police encounter if the facts objectively indicate that “the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.”  State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L. Ed.2d 389, 402 (1991)) (internal quotation mark omitted).   In applying that test, our courts implement the constitutional guarantee to protect the “reasonable expectations of citizens to be ‘secure in their persons, houses, papers and effects․' ”  Id. at 165 (quoting N.J. Const. art.   I, ¶ 7).

An investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by the police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest.  State v. Stovall, 170 N.J. 346, 355–56 (2002);  see also Terry, supra, 392 U.S. at 19, 88 S.Ct. at 1878–79, 20 L. Ed.2d at 904.

The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is “based on ‘specific and articulable facts which, taken together with rational inferences from those facts,’ give rise to a reasonable suspicion of criminal activity.”  State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L. Ed.2d at 906).   Under this well-established standard, “[a]n investigatory stop is valid only if the officer has a ‘particularized suspicion’ based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing.”  State v. Davis, 104 N.J. 490, 504 (1986).

To satisfy constitutional safeguards, a motor vehicle stop “must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.”  State v. Amelio, 197 N.J. 207, 211 (2008) (quoting State v. Carty, 170 N.J. 632, 639–40, modified, 174 N.J. 351 (2002)), cert. denied, 556 U.S. 1237, 129 S.Ct. 2402, 173 L. Ed.2d 1297 (2009).   The stop must reflect “some minimal level of objective justification,” and cannot be justified only by an officer's “inarticulate hunches” or “subjective good faith.”  Id. at 211–12 (internal quotation marks and citations omitted).   However, an officer “is entitled to draw” “reasonable inferences” based on his or her experience, and a judge should weigh such inferences in assessing whether the officer acted reasonably.   Id. at 212.   In summary, to establish that a stop was constitutional, “the officer ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ ”  Ibid. (alteration in original) (quoting State v. Arthur, 149 N.J. 1, 8 (1997)).

Green argues that, because he “did not commit a motor vehicle infraction, ․ the seizure of [his] vehicle was not constitutionally permissible.”   We disagree.   On a motion to suppress, the State is not required to prove that “it could convict the driver of the motor-vehicle offense” to establish the lawfulness of a stop by officers who suspect a traffic offense has occurred.   State v. Williamson, 138 N.J. 302, 304 (1994).  “[I]t is inconsequential that the defendant was ultimately acquitted of the motor vehicle violation.   The issue is whether the officer had a reasonable and articulable suspicion of a violation before the stop.”  State v. Heisler, 422 N.J.Super. 399, 413 (App.Div.2011).

Green also asserts that Herner did not have an objectively reasonable belief that Green had committed a motor vehicle infraction.   He highlights the Law Division judge's finding that Green cleared the intersection before the light turned red, as well as Herner's statement about “cutting it kind of close there with the light.”   Green contends that Herner's comment “undeniably reveals” Herner “knew [Green's] vehicle made it through the intersection before the light turned red.”   We find those arguments unpersuasive.

Herner consistently testified, both on direct and cross-examination, that he saw the light turn red before Green left the intersection.

․ I observed the traffic signal for the Center Street change to yellow and I observed I believe it was a pickup truck what appeared to me start to accelerate [to] attempt to get through the intersection and the light turned red prior to him getting completely through the intersection.

․

[DEFENSE COUNSEL]:  Would you ․ agree with me ․ that [Green's] car made it through the intersection and that light did not turn red until he was completely through the intersection?

[HERNER]:  No, it didn't appear that way to me.

[DEFENSE COUNSEL]:  Okay. So, we'll watch the tape again and see if we can see that.

․

[VIDEO PLAYING;  EXCHANGE CONTINUES:]

[DEFENSE COUNSEL]:  Okay. So, you tell me when [the light] turns red.

[HERNER]:  The rear of the vehicle is still in the intersection.

[DEFENSE COUNSEL]:  Is that your testimony?

[HERNER]:  He's not in the complete middle of the intersection, but he's not all the way through prior to that light changing.

․

[DEFENSE COUNSEL]:  We'll watch that again.

․

[VIDEO PLAYING;  EXCHANGE CONTINUES:]

[HERNER]:  Red. The rear of the vehicle is still there.

Like the municipal judge, the Law Division judge found Herner's testimony to be credible.   Although he found that Green's vehicle had cleared the intersection before the light turned red, the judge noted that he based his conclusion on multiple reviews of the video.   He nevertheless concluded “from [Herner's] testimony and corroborated by the recording that there was an articulable and reasonable suspicion for him to conduct the stop․  I don't [sic] think [Green] actually got through the light.   But I think there's ․ enough of a question as to what was seen on the video for the officer to pursue and stop him.” ²

Affirmed.

FOOTNOTES

FN1. On August 10, Green filed a motion to stay his incarceration pending appeal.   We denied that motion on August 30.   Green subsequently filed a motion to accelerate the appeal, which was also denied..  FN1. On August 10, Green filed a motion to stay his incarceration pending appeal.   We denied that motion on August 30.   Green subsequently filed a motion to accelerate the appeal, which was also denied.

FN2. We are not persuaded by Green's argument that Herner misinterpreted the law, as opposed to the facts.   See State v. Puzio, 379 N.J.Super. 378, 382–84 (App.Div.2005).   We agree with the judge that Herner's testimony established an objectively reasonable belief that Green's conduct had violated N.J.S.A. 39:4–97 (careless driving).  Puzio is not applicable to this case.   Accordingly, Green's argument that Williamson, supra, 138 N.J. at 304, is inapplicable in light of Puzio also lacks merit..  FN2. We are not persuaded by Green's argument that Herner misinterpreted the law, as opposed to the facts.   See State v. Puzio, 379 N.J.Super. 378, 382–84 (App.Div.2005).   We agree with the judge that Herner's testimony established an objectively reasonable belief that Green's conduct had violated N.J.S.A. 39:4–97 (careless driving).  Puzio is not applicable to this case.   Accordingly, Green's argument that Williamson, supra, 138 N.J. at 304, is inapplicable in light of Puzio also lacks merit.

PER CURIAM